Sunshine Week: Secrecy Shrouds Justice Dept. Professional Misconduct

Earlier today, the Project On Government Oversight (POGO) published a freelance report I wrote on how secrecy surrounding the Department of Justice’s (DOJ) internal investigations of alleged professional misconduct has fueled concerns in some parts of the legal community that the Justice Department isn’t aggressively holding its attorneys accountable. One potential solution that’s been floated, for example in a 2010 American Bar Association resolution, is a return to the 1990s DOJ policy that created a “public interest disclosure standard” that weighs the public interest in releasing public summaries of DOJ Office of Professional Responsibility’s (OPR) investigative reports against privacy and other interests. This policy was silently reversed in the early years of the Bush administration.

Given that President Barack Obama has called for more transparency since the earliest days of his administration, it may be time to bring the policy back. “Particularly given this presidential commitment to transparency, DOJ should give OPR’s work greater visibility, as it did in the last seven years of the Clinton administration,” Fordham Law Professor Bruce A. Greenwrote in the Yale Law Journal in 2009. “DOJ’s experience in the 1990s showed that it will not hurt to let in substantially more light,” he added. Green was one of the co-sponsors of the 2010 ABA resolution.

Since Sunshine Week – a national initiative promoting more open government – is next week, it’s timely to take a deeper look at this government transparency issue. As I wrote for POGO, "the potential stakes are high, from whether people facing federal charges get a fair day in court to whether the U.S. government is properly represented in disputes with corporations where taxpayer money is on the line. It’s not only that innocent people could be wrongly convicted and sent to prison; it’s also that, where the legal process has been tainted, convictions of guilty parties can be thrown out."

Examples of 1990s OPR Public Summaries

While the 1990s practice perhaps didn’t live up to some people’s expectations regarding the policy – namely a relative handful of summaries that named names appear to have been issued – they still illustrate something the DOJ could do again. The Center for Effective Government managed to obtain a few from a long-time observer of DOJ, who has preferred to stay anonymous, that as far as we know are not online anywhere.

The first relates to assistant U.S. attorney (AUSA) Joseph Frattalone, whom OPR found “engaged in professional misconduct” because he “consciously disregarded his discovery obligations and made an improper argument to the jury,” according to the summary dated May 15, 1996. “OPR concluded that he acted in reckless disregard of his obligation to be candid with the Court of Appeals and that he committed intentional misconduct in misrepresenting facts to OPR.” OPR recommended “at least 15 days” suspension to termination of the AUSA’s employment. But the U.S. Attorney for whom the AUSA worked “rejected OPR’s recommendation and instead issued a written reprimand” after the U.S. Attorney reviewed the AUSA’s personnel records and interviewed his supervisors, as well as considering the “incident at hand occurred before the U.S. Attorney assumed office.”

The second, dated Feb. 9, 1998, concerns AUSA Keith Reisenauer. OPR found that he “did not commit professional misconduct.”

While some OPR reports have made their way into the public domain over the last decade, those have been in extraordinary cases – such as the OPR report regarding DOJ advice on so-called “enhanced interrogation techniques,” which many deem torture, and the OPR report on the prosecution of the late Sen. Ted Stevens (R-AK). Yet Congress, not the DOJ itself, released those reports to the public.

Is Professional Misconduct a Problem? And Is DOJ Adequately Policing Its Own?

Professional misconduct that’s confirmed by investigators may be rare relative to the number of cases the DOJ is involved in in any given year, but the numbers of confirmed allegations recounted in annual OPR case statistics suggest that there are still a number OPR reports that potentially could be of public interest that haven’t seen the light of day. For instance, in fiscal year 2012, OPR concluded there were 35 allegations of misconduct that had merit, according to its annual report for that year. It’s unclear how many attorneys or cases were involved.

These OPR annual reports currently do not name names, although they contain interesting case summaries at times.

One of the allegations OPR found merit with that year was what’s known as a Brady violation, where the DOJ attorney failed to disclose information that could be useful to the defendant, also known as “exculpatory” evidence. “OPR conducted an investigation and found that the DOJ attorney failed to disclose information from a non-testifying witness that contradicted the testimony of a key government witness regarding the defendant’s actions, as well as discrepancies concerning the clothing that the defendant wore on the day of the crime,” according to OPR’s annual report. "OPR also found that the DOJ attorney failed to disclose information provided by the non-testifying witness that implicated the government witness in the crime for which the defendant was charged.” Further, “OPR determined that the DOJ attorney had not provided his supervisor with critical facts that revealed the exculpatory nature of the evidence.”

OPR found the attorney committed reckless professional misconduct in failing to disclosure this evidence and poor judgment in failing to inform his supervisor of “critical facts” regarding the nature of the evidence. A 10-day suspension was imposed after OPR’s findings were reviewed, and the relevant state bar authorities were informed of OPR’s findings.

Despite the secrecy, in some ways, DOJ may be tougher than some critics realize. As Scott N. Schools, then an Associate Deputy Attorney General who had supervisory responsibility over OPR until early last year, told me in an e-mail, “When OPR investigates a Department attorney, it applies a lower standard of proof (preponderance of the evidence) than most state bar associations (clear and convincing evidence).”

“So in that sense, the Department has decided to hold its attorneys to a higher standard than the professional licensing bodies,” Schools wrote. He added, “I think that the Department presently is doing an effective job of holding prosecutors accountable for alleged misconduct.”

But it’s hard to know if this is actually happening in practice because of all the secrecy. While state bar authorities might need to clear a higher burden of proof before they conclude an attorney has committed misconduct, most are far more public about the process.

State Bar Authorities Tend to Make More Public When There Are Serious Allegations

"When it comes to the Department of Justice, bar authorities tend to bow to the internal processes at DOJ, so it is important for the public to have confidence in DOJ's processes. This does not mean that DOJ should make things public that bar authorities would not make public,” Stephen Saltzburg, a law professor at George Washington University, told me. Saltzburg was another co-sponsor of the 2010 ABA resolution referenced above.

Yet most bar authorities make even allegations of professional misconduct public if a formal complaint has been filed by a bar counsel, who are “legal professionals whose members enforce ethics rules that regulate the professional conduct of lawyers,” as the National Organization of Bar Counsel puts it. This complaint would roughly be the equivalent of making an indictment public – although not criminal in nature, it’s an official accusation that a prosecutor should feel has enough merit that he could win in court given the facts and the burden of proof.

A federal judge in a court ruling in Massachusetts in 2009 cited Massachusetts Bar Counsel research that stated: “Thirty-five states and the District of Columbia open their records to the public ‘once there has been a finding of probable cause, or a formal complaint has been filed’” and that “[f]our states as well as the District of Columbia provide public access to their records without a finding of probable cause.”

Given that in order for OPR to reach a finding of misconduct in its final investigative reports, it has to clear a preponderance of evidence hurdle – which is a higher standard than probable cause – there appears to be more of an argument for publicly releasing more information about OPR reports.

Accountability Is a Balancing Act

None of this is to say that transparency shouldn’t be balanced against other interests, notably privacy of both the accused and third parties. And OPR isn’t the last word in the Justice Department. Even if its investigation concludes misconduct occurred (defined by DOJ as intentional misconduct or reckless misconduct; poor judgment and mistakes are not considered misconduct), the relatively new Professional Misconduct Review Unit provides another look and reviews OPR’s findings. In sum, the accused is given a degree of due process in this internal system. This means that sometimes, OPR’s findings are not sustained. More public information would be helpful here, as well. In the first OPR public summary above, DOJ released information not only about OPR’s findings, but about DOJ management’s response to them and the discipline ultimately handed down.

The lack of public information may weaken the Justice Department’s system of accountability. “There is some deterrent effect from a public reprimand by OPR because of the reluctance of prosecutors to have their names publicly associated with misconduct,” then-law student Lynn R. Singband wrote over a decade ago in a Fordham Urban Law Journal article, but “[t]he effect is limited, though, because of the general unavailability of OPR decisions and the limited nature of their content. OPR decisions often are reported only in summary format and published without any names.”

At a minimum, making public summaries of OPR investigations available when it finds misconduct if there’s a reasonably plausible public interest in the case is far from a radical proposal. It would still fall short in certain respects of what many state bar authorities already do. But it could go a long way toward alleviating some of the skepticism many have about DOJ’s ability to police its own. At the same time, it could help bring some accountability when it’s warranted, as painful as it might be at times.

Yet these public summaries can’t be too threadbare, or it might be counterproductive to release them because they could mislead the public and/or would not be meaningful. Too much, though, and legitimate privacy interests could be threatened. Within DOJ, there are concerns that too much public exposure could make law enforcement less agressive.

Reflecting the nuanced and complicated nature of the issue and what some of the stakes are, former DOJ official Scott Schools told me, “Public disclosure of OPR reports or summaries that necessarily redact or leave out information necessary to a full understanding of their conclusion would be much more likely to chill prosecutors from pursuing legitimate but aggressive law enforcement objectives than it would be to shine meaningful light on the small number of misconduct findings.”

But as then-Deputy Attorney General Philip B. Heymann wrote in 1993 on the 1990s Justice Department policy, “Serving as an attorney with the Department of Justice carries with it a responsibility to observe high ethical standards,” and the “public’s interest in knowing whether all of our attorneys are consistently satisfying those standards should be weighed in the balance when making the determination about whether disclosure is appropriate.” We agree.